Tuesday, October 4, 2011

This stuff makes me happy, because I think the Florida Bar has become more of a consumer protection agency, than an association of lawyers. It also makes me happy because I have argued that the advertising rules should be as follows: "Read rule 4-8.4," (no false, misleading, deceptive behavior.)

But the Florida Bar continues to micro manage lawyer advertising, protecting Aunt Sadie from some errant letter about a legal matter.

So now Jacksonville federal judge Marcia Morales Howard ruled some of the advertising rules unconstitutional.

Lawyer William Harrell wanted to use the slogan "Don't Settle for Less Than You Deserve," but that's a no no.

Judge Howard held the rules to be "vague."

They're not vague, they're ridiculous.

Public Citizen brought the lawsuit, and in critizing the advertising rules, made the point as to why they exist: "The rules have made it extremely difficult for lawyers in Florida to effectively reach injured consumers in need of representation," said Greg Beck.

That's right, the goal is to keep us away, because consumers don't want to hear from us.

But the Bar has to have evidence, and facts, and they didn't:

The Bar does not articulate any basis for believing that “Don’t settle for lessthan you deserve” could potentially mislead the public or erode the public’s confidence in the legal profession. See Mason, 208 F.3d at 958 (“The Bar has the burden in this case of producing concrete evidence that Mason’s use of the words ‘AV Rated, the Highest Rating’ threatened to mislead the public.”). Moreover, the Bar presents no evidence, anecdotal or otherwise, that the phrase has misled the public or tarnished the reputation of the legal profession in the public’s eyes. Mason, 208 F.3d at 957. Instead, the Bar generally cites to data which purportedly shows that television advertising “lowers the public’s respect for the fairness and integrity of the legal system and adversely affects the system.”

The Florida Bar has since amended the advertising rules, but they're still ridiculous, cumbersome, and subject to all kinds of interpretation that leaves lawyers wondering whether it's worth advertising at all.

(Editor's Note: I hate most lawyer advertising but defend a lawyer's right to advertise - I"m kind of a hyporite that way.)

Non-anonymous comments welcome.Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.